When describing their view of government and public policy, libertarians and constitutional conservatives sometimes use a variation of this phrase: “Not everything that’s illegal is immoral, and not everything that’s immoral should be illegal.”

To put this in tangible terms, consider the fact that the EPA has penalized people who build ponds on their own property. Yet the property owners obviously haven’t engaged in any behavior that’s wrong. Indeed, it would be far more accurate to accuse the bureaucrats of behaving immorally. And Walter Williams, among others, has argued that “decent people should not obey immoral laws.”

By contrast, there are many things that we should consider immoral, such as cheating on a significant other by patronizing a prostitute, but we would argue that it’s not a proper role for government to criminalize caddish actions or victimless behavior.

This distinction between immoral and illegal is appropriate as we consider…